This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

I have posted my brief article on CSIS extraterritorial surveillance and related issues, expanding on testimony to the Commons Standing Committee on National Security on Bill C-44. The article may be accessed via SSRN here. The abstract is as follows:

Written in response to the tabling of Bill C-44 in the Canadian Parliament, this article addresses three issues: judicial oversight of foreign spying conducted by the Canadian Security Intelligence Service; judicial oversight of intelligence sharing between Canadian agencies and international security partners; and review of Canadian security and intelligence agencies. The article raises concerns about the status quo, and proposes reforms.

Ani Mamikon and I have posted our full post-peer review article on foreign fighters and Canadian legal tools to SSRN. The article is now forthcoming, UBC Law Review. It was written in summer 2014, and updated this week in an effort to reflect (incrediably fast moving) events in the area. The paper is here. The abstract is as follows:

This article discusses legal strategies for dealing with the “foreign fighter” problem – that is, Canadians travelling to participate in foreign insurgencies. It reviews the empirical literature in an effort to define the scope and policy importance of “foreign fighters”. It then examines comparative legal strategies grappling with the phenomenon, before assessing Canada’s own legal tools. The article focuses on a serious omission in the Canadian tool-kit: the absence of an effective “neutrality law”, available to prevent foreign fighter departures and penalize returns independent of (legally convoluted) preoccupations with terrorism. The article warns that approaching foreign fighters through the optic of anti-terrorism shackles state responses, and can be best viewed as an exercise in expediency. On the one hand, this expediency risks contorting legal tools in a manner that may ultimately undermine and even discredit government actions. On the other hand, it leaves serious blind-spots and gaps in the state’s response to foreign fighters. The article recommends, therefore, a back-to-the-future strategy of renewing Canada’s antiquated neutrality law.

[This testimony was a variant on the presentation posted here, but in this version I go beyond foreign fighters to discuss broader implications, to the extent time permitted.]

Senate Standing Committee on National Security and Defence

Study on Security Threats Facing Canada

Speaking Notes

Craig Forcese

December 8, 2014

Thank you for your invitation. I will mostly be addressing the third question posed to us, on threat reduction tools. I wish first to provide context, using a diagram I have circulated. [Reproduced in Annex 1]

The diagram contains several circles. The most important are “foreign fighting”, “radicalization” and “terrorist activity”.

First point: there is sometimes a conflation in the public mind between these three phenomena. In at least some popular discourse, these three circles are not so much overlapping, as identical.

Not true, as an empirical matter.

Not all radicals are foreign fighters. Not all foreign fighters are radicalized. Finally, not every foreign fighter, not every radicalized individual and not even every radicalized foreign fighter is bound to commit a terrorist activity.

Some do, but based on a dataset spanning 1990 to 2010, we’re talking about one in every nine foreign fighters returning to commit a domestic act of terror. These are, of course, data that predate the implosion of Syria and Iraq and the ISIS phenomenon. And I suspect this ratio will change in the next decade.

But the fact remains that these three categories of radicalization, foreign fighting and terrorist activity do not overlap in full. And that complicates life. If some but not all radicalized individuals or foreign fighters may commit a terrorist activity, preempting terrorist activity becomes more difficult.

My diagram presents this dilemma most starkly if you juxtapose Zones 1, 2, and 3 with Zones 4, 5, 6. Zone 1, 2 and 3 represent the vast majority of foreign fighters or radicals who are not then involved in terrorism. Zone 4, 5, and 6 represent those relatively few who do gravitate to terrorist activity, and especially domestic terrorist activity.

So how then to stop those in Zones 1, 2, and 3 from moving into zones 4, 5, and 6?

The reality is that we are talking about some sort of preemptive approach – that is, stopping conduct before it reaches the point of actual terrorist activity.

In zones 7, 8 and 9, we have what I’ll call “criminal preemption”. These are all the terrorism offences that are basically about conduct that has not yet reached the usually kinetic acts of violence associated with terrorist activity. Facilitation. Participation. Instruction. The new rules on terrorist travel. Also the general incitement rules in the Criminal Code (that is, counselling an offence), aiding and abetting, conspiracy etc.

All of these offences have one thing in common: Parliament has concluded that this conduct is sufficiently proximate to terrorist activity that it attracts criminal sanction.

The issue after the Ottawa attacks is whether the criminal preemption circle is big enough. Should it reach even further into Zones 1, 2, and 3? I think we need to be very, very careful in making an already vast circle even bigger. I’ll return to this in a moment.

Administrative preemption

Criminal preemption is not perfect.

Substantively, there are limits to the crimes.

Procedurally, they need to be proved in open court, with real evidence, beyond a reasonable doubt.

So for these reasons – and others – criminal tools may not be used.

Instead, the government may resort to a buffet of other mechanisms represented by the circle marked “administrative preemption” and creating zones 10, 11 and 12. What are these?

These tools are a mixed bag. They each have pros and cons, which we can discuss if of interest. I will say this, however. Peace bonds are mostly unexplored, and probably should be explored more. And I am not personally persuaded that their non-use is a problem with burdens of proof.

Nothing in the circle is perfect, but collectively these measures amount to a fairly impressive arsenal.

Investigative preemption

My last tool circle focuses on what I’ll call “investigative preemption”. This seems a contradiction in terms: an investigation is supposed to lead to something, like a prosecution, not itself preempt. But of course, the real world is more complicated.

The most graphic use of investigative preemption would be an investigative hearing under the Criminal Code’s anti-terrorism rules.

Other investigative techniques include overt surveillance, covert wiretaps that reveal other, more easily prosecutable crimes, and even traffic stops. All these can provoke conduct that police can then act on.

Investigative preemption of this sort has obvious merits. But it is also potentially the most lawless form of counterterrorism. Using police or security intelligence powers, not to pursue criminal prosecutions or collect intelligence, but instead to provoke and disrupt people who, to that point, were acting lawfully, is a dangerous practice.

Investigative preemption is an area calling out for careful policy guidance, possible legislative action and lots and lots of review by review bodies much more robust than those we have at present.

Next steps:

So where to now? Let me end with a few brief observations.

1. We need to solve the intelligence/evidence problem. I suspect that many potential prosecutions or peace bond processes lie in limbo because of this issue. The government needs to sit down with the Air India inquiry report and take its many recommendations on this issue seriously, something it has not done with Bill C-44.

2. We need to be wary about thinking that more criminal offences will solve our problems. Like Australia, I would like to see a robust foreign enlistment law to deal with the foreign fighters issue. But I think UK, Spanish or French-style glorification offences are both unnecessary, constitutionally doubtful and, ironically, would shut down some of the very online speech that law enforcement and intelligence services turn to in order to unravel conspiracies. We need to be very, very nuanced in this area.

3. Giving the RCMP new criminal laws without asking why they aren’t using all the tools presently, places the cart before the horse. This whole issue may be about resources, not law. I would add this: I think we should be throwing money hand over fist at the RCMP’s nascent counter violent extremism program. We deceive ourselves in presenting this as a problem to be solved by prosecutions and penitentiaries. Law is a partial and imperfect strategy, and empirical studies of past deradicalization efforts suggests that too much coercive law can precipitate exactly the consequence it is supposed to deter.

4. Last, if you keep pressing the thumb on “more powers for the cops and spies” scale and keep ignoring the fact that our review system is broken, you are queuing up another legitimacy crisis. The CSIS Act lasted 30 years more or less unamended because it was enacted with deliberation and balancing power with accountability. In comparison, the post-9/11 measures have lurched from controversy, to challenge, to new controversy. Policy and law makers needs to sit down with the Arar Commission policy report and take it seriously. Anti-terrorism law cannot be all sails and no anchor.

Thank you.

Annex: Anti-terrorism Diagram

Annex: European Glorification Laws

I provide this discussion for information only. I do not believe these laws to be suitable for a Canadian context. I also note that in France and the United Kingdom at least, prosecutions brought under these laws (or their predecessors) have sometimes been very controversial and would, if transposed to Canada, reach deeply into the area of protected speech under the Canadian Charter of Rights and Freedoms.

Spain

Spanish criminal law creates a broad offence of terrorism glorification: “glorification or justification, through any form of public information or communication, of …[terrorism] offences … or of persons having participated in their perpetration, or the commission of acts tending to discredit, demean or humiliate the victims of terrorist offences or their families”.[1]

France

In October 2014, France revised its anti-terrorism law, criminalizing in its penal law not just direct provocation of terrorist acts but also making public “apologie” for these acts.[2] The new law also allows a judge to issue a stop order to internet service providers where connected to the criminalized incitement or “apologie” and manifestly illicit.[3]

United Kingdom

The United Kingdom Terrorism Act 2006 introduced two new offenses, aimed at speech: “encouragement of terrorism”[4] and “dissemination of terrorist publications”.[5] Both impose maximum sentences of seven years imprisonment. In both instances, the crimes reached “indirect encouragement”, presumed to include statements or publications that “glorify” the commission or preparation of terrorism crimes, whether in the past, future or generally, so long as members of the public could reasonably infer that the glorified behaviour was conduct that was to be emulated in the existing circumstances. “Glorification” “includes are form or praise or celebration, and cognate expressions are to be construed accordingly”.[6]

The publication offence “focuses not on the original publisher but on those who pass the publication on”.[7] It appears to reach internet service providers (ISPs) and the owners of websites on which people can post statements.[8]

In fact, a third provision in the UK Act established detailed rules for statements or publications communicated via internet (or electronically).[9] Once a constable gives notice to a person that – in the opinion of the constable – the statement or material is “unlawfully terrorism-related” and that it should be removed from public circulation, a person failing to comply within two days is presumed to endorse the statement or article. (In practice, police give this notice in consultation with the Crown Prosecution Service.)[10]

The presumed endorsement is not an offence in its own right, but does narrow the basis for any defence if the person is then charged with encouragement or terrorism or dissemination of terrorist publications. “Unlawfully terrorism-related” includes material that (in the eyes of a person it has or may become available) directly or indirectly encourages or induces the commission, preparation or instigation of a terrorism act, or which is likely to be useful in the commission or preparation of such acts. As with the two offences described above, “glorification” is presumptively of indirect encouragement.

The two 2006 offences supplemented another speech-related offence, found in the Terrorism Act 2000: collection of information. Under this provision, it is a crime punishable with imprisonment of up to 10 years to collect or make a record of “information of a kind likely to be useful to a person committing or preparing an act of terrorism”, or possessing a document or record containing this sort of information.[11]

The UK Home Office reports that between September 11, 2001 and March 2014, there were a total of 460 charges and 220 convictions entered under anti-terrorism legislation in Great Britain. Of these, 48 persons where charged with the principal offence of collection of information under the Terrorism Act 2000.[12] A total of 33 convictions were entered under this provision,[13] producing a conviction rate of 69%.

The Terrorism Act 2006 came into force in April 2006. Between that time and March 2014, there were four instances in which the principal charges brought against a person were for encouragement of terrorism,[14] and 3 convictions.[15] There were also 12 instances where the principal charge was for dissemination of a terrorist publication,[16] and 8 convictions.[17]